Joseph Green Brown came within 15 hours of dying in Florida's electric chair. The Penalty traces the legal struggle to save Brown and raises questions about whether he was wrongfully accused of a 1973 Tampa murder.
The book, published last spring, is a fictionalized account of Brown's 14-year ordeal. If readers of The Penalty are curious about the actual court case, the stacks at the Hillsborough County Law Library won't help much.
The 1986 federal appellate ruling that sprang Brown from Death Row is nowhere in the casebooks. Someone appears to have used a razor to slice the pages containing the opinion right out of a law book at the library.
The court ruling does live on in legal cyberspace.
The appeals court concluded that a state prosecutor got a jury to convict Brown of raping, robbing and murdering a mother of five because he "knowingly allowed material false testimony to be introduced at trial." The court further found that the state "failed to step forward and make the falsity known" and "knowingly exploited the false testimony" during closing arguments.
The state attorney at the time of the 1974 trial was E. J. Salcines, now a state appeals court judge. Two Salcines assistants who handled the state's case have moved on as well. But their names are familiar to Tampa newspaper readers.
Robert H. Bonanno prosecuted Brown. Bonanno is today an embattled Hillsborough circuit judge who so far has weathered criminal, legislative and professional inquiries during the past year into misdeeds unrelated to the Brown case.
F. Dennis Alvarez, fresh from law school, aided Bonanno at the prosecution table, although he had yet to be admitted to the Florida Bar. Last July, Alvarez quit the county's chief judgeship in the wake of the latest flurry of scandals at the Hillsborough courthouse. Alvarez is talking about running for mayor of Tampa.
There are those who would like the public to forget about the murder and Joseph Brown, who was freed after the court acted. J. Michael Shea and G. Mathew Evans are not among them.
Mike Shea represented Brown and authored The Penalty, his first stab at writing something more accessible than legal briefs. "Bonanno will tell you to this day that Joseph Brown did it," said Shea. "That's bullshit."
In 1973, Mat Evans was just out of high school when his mother, Earlene Barksdale, was found dead at her shop with a bullet in her head. The Penalty has rekindled her son's desire to find the real killer.
Two months ago, Shea and Evans visited Hillsborough State Attorney Mark Ober. They asked Ober, who is serving his first term in office, to take another look at the Barksdale murder.
"Shea told me there are people downtown you can trust now," Evans said. "I knew back then there was nobody I could trust."
Ober told them that he could not reopen the case without physical evidence. Therein lies a problem.
After Brown was released in 1987, the Barksdale murder reverted to unsolved status. A year later, most of the evidence introduced at Brown's trial was turned over to the Hillsborough County Sheriff's Office by the court.
Sheriff's officials cannot account for its whereabouts.
Among the trial evidence listed in court records was carpet from the murder scene that Shea said contained semen samples. Those samples now could be subjected to DNA testing, unavailable to law enforcement in the 1970s.
Shea and Evans asked Ober to find out where that evidence went.
The Victim
The body of 34-year-old Earlene Treva Barksdale was discovered on July 7, 1973, at the Just Kids Shoppe on Busch Boulevard by Fred C. Barksdale, who later testified at Brown's trial that he was married to the victim.
Tampa lawyer Fred Barksdale never legally wed Earlene, according to Mat Evans, the oldest of the victim's five children.
Barksdale recently told Weekly Planet: "I was living with her as my wife." But Barksdale refused to characterize their exact legal status as a couple. "That's personal," he said. "I'm not going to get into that."
Evans said his mother assumed Barksdale's surname in the process of becoming his mistress and bearing him two children over a period of 12 years.
Earlene met Barksdale when he handled her divorce from Evans' father.
Eventually, Fred Barksdale had two families, one with Susan F. Barksdale in Tampa's Sunset Park section and another with Earlene T. Barksdale in Temple Terrace, according to Evans.
"We had a fully stocked household," said Evans. "Vacations, lake house. We didn't even know about Susan and them."
All Earlene's kids knew was that their main breadwinner was away from home a lot. "Fred Barksdale was an important attorney," said Evans. "Hey, you move into something, that's the norm. You accept it. Mighty important person, mighty busy attorney."
Aside from a whole other family in South Tampa, Barksdale kept busy defending clients charged with driving while intoxicated. He and law partner Abel H. Rigau were famous in Tampa legal circles for their astonishing record of success with DWI cases before particular traffic judges.
Fred and Susan Barksdale divorced in Polk County four days before the start of Brown's trial.
The Investigation
Dick Rivett, a Tampa police detective in 1973, said he was one of the homicide investigators assigned on the night of July 7 to find out who killed Barksdale's mistress.
Coincidentally, Rivett and his wife had visited the Just Kids Shoppe earlier the same day. Only a few hours before she was shot, Earlene sold the Rivetts a dress for their newborn.
One thing Rivett noticed on his first visit to Earlene's shop that day was a huge diamond ring on her finger. That night, Rivett said, the ring was still on her finger at what had become the scene not only of a murder but also a supposed robbery.
Fred Barksdale said he had returned from St. Pete Beach after calling and failing to get an answer at the shop. Barksdale said he was expecting Earlene to join him and their two preschool daughters at a beach motel after she closed the shop. Once back in Tampa, Fred Barksdale said, he drove to the locked shop to find his slain mistress.
She was most likely shot with a .38-caliber Smith & Wesson Special revolver, according to a FBI laboratory report.
For much of that day, Mat Evans was home. Fred Barksdale called the Temple Terrace house at least twice, recalled Evans, asking that the son check on Earlene at the shop. "I just blew him off," said Evans. "If Mom needed something, she'd have called."
Rivett said Fred Barksdale knew his first and last names. The attorney was well acquainted with Tampa police because of his DWI practice and his habit of representing cops for free in divorce court, Rivett said.
There were three hours on the day of the murder that Barksdale couldn't account for, according to Rivett. Under questioning at police headquarters, the attorney readily admitted that nobody could vouch for where he was during those three hours, Rivett said.
That isn't how Fred Barksdale remembers it. Barksdale said he made no such admission to police.
Overnight, as police conducted other interviews, Rivett heard about recent acrimony between Barksdale and his mistress. At the end of his shift, Rivett passed along the information about the discord and the three-hour gap.
Day detective William P. Bebler, who ended up lead investigator on the case, reacted with incredulity.
"He said he'd known Fred Barksdale all of his life," said Rivett, remembering a conversation with Bebler. ""Oh, my God, Fred wouldn't do this kind of shit. What the fuck, are you nuts?'"
Fred Barksdale, now 80, said he was considered a prime suspect for about five days after the murder. Then, Barksdale said, he passed a lie-detector test and police shifted their attention to others.
The Suspect
Bebler came to focus exclusively on Joseph Brown as his man.
A 23-year-old African-American drifter from South Carolina, Brown had confessed a day after the Barksdale murder to a motel robbery near the Tampa airport. The motel was miles across town from the Just Kids Shoppe, which was east of Busch Gardens.
Brown admitted robbing and sexually abusing a female motel guest on July 7.
That was good enough for Bebler, whose nickname was "Bebop." The trouble for Bebler was that Brown adamantly denied knowing anything about Earlene's demise.
A few months after the murder, Rivett was at the county jail on Morgan Street to question an inmate. Rivett said he couldn't help eavesdropping on the toughest police interrogation he ever heard. Rivett said he listened as a man screamed obscene and racially charged epithets.
Later, as Rivett waited to be let out of the lockup, Bebler and a black inmate emerged. When Rivett inquired about what was going on, he said Bebler replied: "That fucking nigger is the bastard that killed Barksdale's wife."
After Brown complained about one such session with police, Shea said he warned Bebler to stay away from his client.
Bebler turned down a Planet invitation to talk about the murder investigation.
Brown and two alleged accomplices in the motel robbery provided blood and pubic hair samples. None could be linked to the Barksdale murder.
The Trial
In November 1973, after picking a jury in the motel case, prosecutor Bob Bonanno learned that the white motel robbery victim couldn't positively identify Brown's alleged black accomplices, Ronald Floyd and Raymond Vinson.
Mike Shea, who was appointed to represent Brown, told the judge in chambers that his client was willing to admit his own role in the motel heist. But Brown would not testify against Floyd or Vinson.
Bonanno had no case against Floyd or Vinson. That is, until the judge threatened Brown with the maximum sentence for his guilty plea. The judge's threat, Shea said, changed Brown's mind about testifying.
The state exploited the resentment of Brown's motel co-defendants at getting ratted out by their pal, according to Shea.
Floyd told police that he and another man, whom the state never produced, accompanied Brown to the Just Kids Shoppe. Brown raped and shot Earlene inside the shop while, Floyd said, he waited innocently outside.
The testimony of Floyd and Vinson was the only evidence that the state could find to connect Brown to the Barksdale murder.
At Brown's trial, Floyd told the all-white Tampa jury that the state had given him no deal for his testimony.
The federal appellate court later found that the prosecution had already cut a deal for Floyd's testimony. Floyd wasn't indicted in the murder case. The state kept quiet about the deal and let Floyd lie under oath at the trial, the appellate court concluded.
The jury convicted Brown, despite the state's inability to connect a murder weapon to the defendant. Brown was sentenced to the electric chair.
Years later, Floyd recanted and testified in court that neither he nor Brown had anything to do with Earlene Barksdale's death. Floyd said he had lied at Brown's trial in order to escape prosecution.
Salcines, the state attorney at the time of Brown's trial, said recently that he recalled Earlene Barksdale's murder. But Salcines said he would have trouble recalling particular details from any of the hundreds of cases that his ex-assistants prosecuted in the 1970s.
Now on the Second District Court of Appeal, Salcines said he hadn't heard of Shea's recent book, "with apologies to a fellow member of the Bar."
Bonanno couldn't be reached for comment on the Brown case and the misconduct allegations that were leveled by the appeals court.
Alvarez, who helped Bonanno with the case, said he thinks Floyd told the truth the first time around, at the trial. Now in private practice, Alvarez said he has no plans to read The Penalty.
The Appeals
Shea handed off much of the appeal work to Connecticut lawyer Richard Blumenthal, who has since become attorney general of that state.
As Brown's appeals wound through the courts in the late 1970s and early 1980s, Fred Barksdale came under a legal microscope too.
In 1977, three years after Brown's sentencing, The Tampa Tribune published an expose of Barksdale and law partner Abe Rigau. Based on months of research in traffic court, the Tribune reported that Barksdale and Rigau had gotten hundreds of DWI charges reduced or dropped altogether for clients, without the cases appearing on the docket of Judge Bob M. Johnson.
In case files, where Johnson's signature should have appeared, Tribune reporters saw only the notation "BMJ-JH" on disposition records. The newspaper reported that the initials referred to Johnson and his clerk, Julianne Holt, a Barksdale protege who also worked part time for him. Holt is now Hillsborough public defender.
The Tribune report intensified federal law enforcement interest in Barksdale. A big Democrat at the time, Barksdale said, he and his friends were targeted by Republican prosecutors in the U.S. Department of Justice throughout the 1970s and 1980s.
Barksdale said two FBI agents spent a couple of years trying to build a racketeering case against him, Rigau, Johnson and Salcines.
"They didn't have any evidence," said Barksdale. "They went out there, wanting to know how much money my clients had paid and whether I could fix a case. They didn't find any of that because it never happened."
Through the federal Freedom of Information Act, Barksdale said he obtained records showing the FBI case was reluctantly declined for prosecution by Bill James. Then a Justice Department lawyer, James went on to be Hillsborough state attorney. In Barksdale's judgment, James was one of his chief tormentors in law enforcement.
After the FBI bowed out, Barksdale said, the IRS secured an indictment against him.
In 1980, Barksdale was found guilty of failing to report about $70,000 from his DWI cases and of telling clients to destroy records of their payments to him before IRS agents could seize the documents.
Barksdale had dodged serious trouble before.
In 1958, the Florida Bar publicly reprimanded him in the aftermath of a grand jury probe. Barksdale was found to have improperly attempted to get a witness in a DWI case to change his testimony. He was placed on Bar-supervised probation.
In 1971, a federal judge suspended a one-year federal prison sentence and imposed three years of court-supervised probation after Barksdale pleaded no-contest to not filing a 1965 income tax return. The Bar took no action.
His charmed life was up in 1982. Barksdale went away to serve 18 months of a six-year federal prison sentence. He lost his law license. While Barksdale was incarcerated, Holt took in his two daughters by his slain mistress.
Meanwhile, time was running out for another inmate. By Barksdale's count, Brown's death sentence was reviewed by 37 judges before the crucial appellate ruling. Then Florida Gov. Bob Graham signed a death warrant and set Brown to be executed in 1983.
Shea, scrounging for new evidence, decided to try to talk to Gerry Fox. A business partner and close friend of the murder victim, Fox had ended a 7-and-a-half-year extramarital affair with Abe Rigau in the mid-1970s. When Shea called, Fox was living in Colorado. She agreed to talk to Shea.
The Case Crumbles
Rigau and Barksdale had established their respective girlfriends, Gerry Fox and Earlene Barksdale, as co-owners of the Just Kids Shoppe where Earlene was fatally shot.
While Rigau seemed to limit his extramarital affairs to one, Fox said, Fred Barksdale squired a host of women around while supporting a wife and a mistress. A few months before the murder, Fox said, Fred Barksdale joined her and Rigau in Las Vegas, accompanied by Holt.
Rigau, a former Tampa police officer before going to law school, still had buddies at headquarters when Earlene was killed, according to Shea. Rigau and homicide detective Bebler were friends, said Fox.
Barksdale said he doubts Rigau and Bebler knew each other at all.
While Shea was questioning Rigau's ex-girlfriend, Brown appellate lawyer Richard Blumenthal won a stay of the execution.
The federal appeals court in Atlanta eventually ordered a new trial for Brown, due to the state's lack of candor at the 1974 trial.
Bill James defeated Salcines for re-election as state attorney in 1984. After the 11th Circuit U.S. Court of Appeals ruled in 1986, it fell to James to decide whether Brown should be retried.
"A blistering opinion" is how James, now retired in Colorado, recalled the appellate rebuke of the prosecution. "I remember reading the 11th Circuit opinion and saying to myself, "Whoa, I'm glad nobody has ever said that about me,'" said James.
Judy S. Hoyer, who had prosecuted Fred Barksdale on the tax charges, said she examined the Brown murder file in the late 1970s as part of her preparation for the federal trial.
"I thought he was innocent," Hoyer said of Brown. "I was absolutely flabbergasted they even took that case to trial."
After leaving the U.S. attorney's office, Hoyer went to work for James. The new state attorney did not retain the services of Bebler, whom Salcines had hired as an investigator after the detective left the Tampa Police Department.
By the time of the Brown appellate ruling, Hoyer belonged to an internal committee that advised James on homicide cases. Hoyer said she was forbidden to participate in its Brown retrial debate because her mind had been made up.
Nevertheless, the rest of the committee and James decided not to retry Brown.
Henry W. Lavandera, a top assistant to James who now works at the University of South Florida, said the "major consideration" in dropping the charges against Brown was Floyd's recantation.
After almost 15 years behind bars, Brown was set free.
Barksdale told the Planet that the travesty of the Brown case was releasing the formerly condemned man.
"The 11th Circuit, they didn't absolve Brown of that murder," said Barksdale. "I am lead-dead certain that he is the son-of-a-bitch. I still feel he is the one who did it."
Noting Brown's guilty plea in the motel robbery, Barksdale sarcastically called him a "real nice guy."
Barksdale accused what he called "the James Gang" of releasing Brown to spite him. "I worked hard, gave money and rallied everybody I could to defeat Bill James when he beat E. J. Salcines," said Barksdale.
As for Brown, Shea said the former Death Row prisoner started studying this fall to be an attorney in Washington, D.C.
Barksdale Speaks
When the Planet first contacted Fred Barksdale about The Penalty, he said had yet to read Shea's book. So the newspaper delivered a copy to his home.
A week or two later, Barksdale had formed a definite impression about the book when he sat for a three-hour interview on Oct. 31. Gruff and bombastic even in his golden years, Barksdale said it was the first time he had talked about Earlene's slaying at length with a reporter.
"The book was completely inaccurate," said Barksdale. "Even the publisher himself said it was a fictional book. I would say 90 percent of it was fiction, hearsay, testimony that's never been under oath."
Like Mike Shea and Mat Evans, Barksdale said he wants Earlene's killer brought to justice. Unlike Shea and Evans, Barksdale said it is preposterous to think that he might have been mixed up in the murder.
"There is no question in my mind that that nigger that's going to law school — you can put the word down there, underline it as nigger there, that's what I consider him," said Barksdale. "I'm interested in putting that fellow back in state prison for murder."
Only his political and personal adversaries would think him capable of homicide, he said. "I've got a lot of enemies," said Barksdale, who boasted that he used to be able to deliver up to 4,000 votes to favored candidates in Tampa elections. "If you're involved in politics, they're always going to shoot at you."
Barksdale questioned Shea's honesty and the Brown defense lawyer's motivation for writing the book. About some of his other skeptics, Barksdale offered these observations:
Barksdale said he keeps in touch with Earlene's kids, "except that little asshole Mat." On the day of the murder, Mat Evans was too busy partying with high school girls to see if his mother was all right, Barksdale said.
Calling Dick Rivett a "piece of shit," Barksdale said the ex-Tampa police detective is still angry because Julianne Holt wouldn't hire Rivett as an investigator after she was elected public defender in 1992.
Rivett acknowledged talking with Holt's office about a job. But Rivett said he decided against finishing the application process. He denied that Barksdale influenced that decision. Rivett said he harbored suspicions about Earlene's murder long before 1992.
Barksdale accused Gerry Fox of failing to pay Earlene's estate for the half-interest in the Just Kids Shoppe that she assumed after the murder.
Fox said she wasn't asked for compensation by Fred Barksdale or Earlene's family. Fox said Fred Barksdale and Abe Rigau owned the property where the shop was located. The shop was unprofitable at the time of Earlene's death, Fox added.
Barksdale doesn't seem as interested in physical evidence as he is in seeing Brown hooked up to a polygraph, like Barksdale said he was. Lie-detector results, of course, are usually inadmissible in court.
Shea wouldn't permit Brown to be polygraphed anyway, said Barksdale. "You can rest assured that his alleged incompetent lawyer will tell him not to take sodium pentothal or a lie-detector test," said Barksdale.
The Aftermath
The Barksdale murder case has generated sporadic national publicity and calls from Hollywood over the years.
The Los Angeles Times did a front-page Sunday profile of Brown shortly after his release. The ABC newsmagazine 20/20 broadcast a segment.
The national spotlight has shown brightest on Brown's extraordinary personal journey. A guilt-ridden black man confesses to a motel stickup and narrowly escapes the death penalty after a clumsy white prosecutor in a racist Southern city manages to pin a murder rap on him, too.
Brown's story is presented as a parable about capital punishment.
The Penalty, with the names changed, hints at forces beyond just racism that may have compelled police and prosecutors to single out Brown.
Shea has done numerous interviews, mostly on radio, about the book across the country. But The Penalty has received little local publicity.
Tribune columnist Daniel Ruth, a cub reporter covering police on the day that Earlene Barksdale was killed, interviewed Shea for radio but not for print.
It was Ruth's WFLA-970 AM radio interview with Shea last June that brought the lawyer-author and Earlene's oldest son together. Rivett also came out of the woodwork to tell what he knows.
Now a private investigator, Rivett recalled his chat with Fred Barksdale at the Tampa police station on the night of the murder.
"When I interviewed him, I handled myself like a gentleman, didn't accuse him of anything," said Rivett. "But I did ask him: "Did you murder your wife?'"
""No,' very calmly, "no.'"
Rivett said Barksdale also denied any problems in his relationship with Earlene and said that he did not own a gun.
Mat Evans said Fred Barksdale owned two handguns in 1973. Gerry Fox told Shea that Earlene had confided to her shortly before the murder that the victim's relationship with Fred Barksdale was strained.
Around the time of the 1980 tax trial, a federal agent later told Shea, Barksdale was stopped with a Smith & Wesson .38 Special. Shea said federal agents confiscated the gun and tracked the weapon back to a 1971 purchase by Barksdale at a Tampa hardware store.
Barksdale said the gun he surrendered to the feds belonged to Holt. The Hillsborough public defender said she knows nothing about the murder and declined to be interviewed by the Planet.
Shea said the federal agents disposed of the gun years after they seized it from Barksdale. "Conveniently, a few years ago, the gun was destroyed," said Barksdale, scoffing.
Although disappointed with the final outcome of the Brown case, Barksdale praised Bill Bebler as a "hard-working, diligent, bulldog-type of detective."
Dennis Alvarez seconded that. "As a prosecutor," Alvarez said, "I thought the cases Bebop brought me were well put together."
Bebler, long since retired from police work, has a Gulf-front condominium at a Redington Beach motel and resort that Fred Barksdale used to co-own.
Barksdale said he has "no idea" how Bebler came to own the condo. Nothing was filed in Pinellas County records to indicate how Bebler initially acquired the unit.
Bebler responded to written questions from the Planet by stating in an Oct. 20 letter that he was tired of talking about the murder case. All Mike Shea wants to do is "sell his book," Bebler wrote.
After fielding queries from 17 newspapers and ABC News over the years, Bebler said: "I can't answer any more." Now 73, Bebler cited an unspecified illness.
The retired detective, declining to address specific questions about his police professionalism or the condo, signed his letter: "THANKS BUT NO THANKS, BILL BEBLER."
Missing Evidence
On Sept. 20, Hillsborough State Attorney Mark Ober sat down with Mike Shea and Mat Evans to discuss the unsolved murder of Earlene Barksdale.
All three men wondered where the physical evidence went.
The FBI customarily returns homicide evidence to local law enforcement. The county medical examiner said his office no longer has a scrap of Barksdale murder evidence.
Ober investigator Richard A. Hurd contacted Tampa police Sgt. Jim Simonson. Hurd told Ober in a memorandum: "Simonson advised that their records reveal that all the evidence was checked out by Detective Bebler in 1973 to be used in court and not returned."
David LaPeer, manager of Hillsborough Court Clerk Richard Ake's evidence office, said the only trial exhibits left in the case file are two fingerprint cards.
Ober spokeswoman Pam Bondi called the disappearance of most all of the evidence in an open homicide case "very unusual." Without physical evidence, Ober said: "We don't have a lot."
Edna Fitzpatrick, an Ake administrator, said state law requires court clerks to retain unclaimed trial evidence for a maximum of 60 days after the case is thought to be resolved. The clerk's office turned over the Barksdale evidence to a sheriff's employee in 1988. That was an entire year after Brown's release, Fitzpatrick noted.
But Mike Shea, now 59, said the Barksdale murder case is far from resolved. Glancing at a list of exhibits from Brown's trial, he said it would be nice today to have a piece of the Just Kids Shoppe carpet that was introduced in court. The carpet was stained with semen that could be DNA-tested in 2001, he said.
Sheriff's officials referred questions about what was done with the evidence to Pat Lawrence, a records custodian. Lawrence said she presumed the evidence was destroyed. She couldn't say for sure. The employee who accepted the evidence on behalf of the sheriff's office has since died, Lawrence said.
Earlene Barksdale's body was found with semen in the mouth and vagina, according to the medical examiner. Evans said he believes his mother had consensual sex right before she died.
"There were no marks on her," said Evans. "I'm trying to find out who my Mom had sex with. That person murdered her."
The eldest son, now 46, keeps returning to the question of why just about all of the physical evidence in an unsolved homicide looks to have vanished. "Evidence has been destroyed because of DNA," Evans said. "There's no other reason."
Contact Staff Writer Francis X. Gilpin at [email protected] or 813-248-8888, ext. 130. <
